By engaging the services of Martlette, you are forming a legally binding contract with and/or it’s affiliated companies, for products and services, and you agree to be bound by the following Terms and Conditions. It is important that you please take time to read through thoroughly and ensure you fully understand these terms and conditions and their implications before you commence any project with Martlette. Engaging the services of Martlette constitutes acceptance of the below terms and conditions.
Please also note that from time to time Martlette may need to alter these terms and conditions without notice. Please contact Martlette if you do not understand any of the terms or conditions set out below.
As a user of the Martlette website, you agree not to reproduce, retransmit, disseminate, sell, publish, broadcast, or otherwise use any material from this site without our express prior written consent.
1. Application
This Agreement is between Martlette and the Client. These Terms of Trade (‘Terms’) apply to every order for products and services (‘works’) the Client places with Martlette except where Martlette agrees in writing signed by an authorised officer of Martlette that all or part of these Terms do not apply. These terms prevail over any written terms and conditions of the Client (if any) and where there are inconsistencies between these Terms and the terms contained in any order these Terms prevail unless accepted in writing. These Terms do not create an obligation on or a promise by Martlette to supply works. On the receipt of these Terms and either the placement of any order or the payment of the deposit constitutes full acceptance of the Client to the Terms.
2. Interpretation
(a) Nothing in these Terms creates any relationship of employment, agency or partnership between the Client and Martlette .
(b) In these Terms, ‘works’ means all graphic s created and supplied by Martlette , including but not limited to artwork, logos, websites, brochures, branding, typography and prints by Martlette to the Client or a third party nominated by the Client.
3. Orders
(a) Where the Client submits an order for works, Martlette shall not be deemed to have accepted such orders unless it does so in writing or otherwise commences performance of the order.
(b) Formal acceptance and confirmation of the order will include time frames, property addresses, payment requirements, and any additional conditions special conditions to the Terms between the parties.
(c) The confirmation form and order may be received by email but where an order is received by telephone Martlette will confirm the details of the order in writing. If the Client does not respond within 5 days of the order confirmation the Client is deemed to accept the written confirmation by Martlette .
4. Payment Terms
(a) A non-refundable deposit of 50% of the fee is required on the placement of the order. The 50% balance of the order will be paid within 7 days of the date of the Martlette invoice or upon delivery of the product or services, whichever occurs first.
(b) Payment can be made by direct deposit or cheque to Martlette .
(c) Original works will not be delivered to the Client until payment or evidence of payment has been received by Martlette .
(d) Any amounts outstanding after 14 days will incur interest of 5% for each week that the payments remain outstanding.
(e) An account shall be considered to be in default if it remains unpaid for 30 days from the date of invoice or the Client has stated expressly that they do not intend to pay an invoice by Martlette , unless prior arrangements have been made. Martlette shall at its sole discretion suspend any and all services provided to the client by Martlette or its subsidiaries (including but not limited to hosting, websites ed files, concepts, artwork, and email) and employ debt collection measures until the total outstanding balance has been paid in full. The Client will be liable for all collection and solicitor’s fees.
(f) Martlette reserves the right not to release the works until payment has been cleared into the nominated bank account.
5. Quotations
(a) All quotes given by Martlette will be valid for 30 days from the date of the quote.
(b) If the Client’s final specifications change from the original specifications made for the quotation, Martlette reserves the right to vary the quoted cost.
(c) All quotes provided will change if start and finish times are amended by the Client.
6. GST
All amounts quoted by Martlette are GST exclusive unless otherwise stated. The Client will be liable to pay GST in addition to the amount quoted where a taxable supply is made by Martlette .
7. Provision of Information
(a) Where requested by Martlette , the Client must provide to Martlette all information and materials required to complete the work in accordance with any agreed specification, including but not limited to: (i) Photographs; (ii) Written copy; (iii) Logos; (iv) Written material; (v) Graphic material; (vi) Any other relevant material; and (vii) Usernames and passwords for domain and website hosting services that are already established in order to upload or edit existing websites.
(b) The Client warrants that all information, images and other materials for inclusion in the Client’s project, regardless of the medium, provided to Martlette is accurate and up-to-date, and Martlette may rely on this information in carrying out the services.
(c) It is expected that all text supplied has been checked for typographical and grammatical errors, and has been approved by all parties that will have a final say in the sign-off for the work. Additional expenses may be incurred for any necessary action, including, but not limited to, photography searches, media conversion, digital image processing and editing, or data entry services. The Client agrees that changes and alterations may be made to text and images (with their approval) to improve the of any items produced (no additional charges for these improvements, this is included with normal charges).
8. Alterations
(a) The Client agrees that changes, additions and alterations requested over and above the original brief will be liable to additional charges. Each small change is often digested and where possible can be absorbed, however if the original brief continues to ‘change’, requiring additional inclusions, alterations, etc, this will impact the project’s completion time and extra charges will be applied.
(b) Corrections, changes to layout, replacement of minor text or images are normally included with any artwork charges, but adding additional content after the original brief can sometimes add significantly to time and therefore artwork charges.
9. Turnaround times
(a) Martlette reserves the right to withhold starting on any project if the deposit is not paid at the time of the Client’s order, and will not be liable for missing a deadline as a result of the failure to pay the deposit.
(b) Where quoted by Martlette , turnaround times are normal target times only and Martlette accepts no liability for failure to meet these times. Martlette will use reasonable endeavours to meet deadlines.
(c) Martlette reserves the right to finalise any project where the client takes more than 3 months to respond to communication. Recommencement of any finalised project will require a new project proposal, project quotation and proposed timeline for client approval. A new deposit invoice will be issued and work will commence following payment of this invoice.
10. Uncollected work
If any items of work including information, graphic materials, photographs and original files belonging to a Client are not collected after six (6) months of the requested work being commenced, Martlette reserves the right to dispose of such material.
11. Copyright, moral rights and consents
(a) Copyright and ownership of all original and draft s, artwork, graphics and Intellectual Property other than the final work chosen and purchased by the Client produced by Martlette remains the property of Martlette , unless otherwise stated or agreed in writing. Full copyright of the final work passes to the client when all accounts have been settled in full.
(b) Draft images may NOT be used for ANY other purpose than viewing. They may NOT be copied, edited or distributed to ANY other person or company, other than those directly in negotiation with Martlette WITHOUT prior permission from Martlette .
(c) If the Client wishes to use any original or draft s or artwork then the Client may only do so if they have received permission in writing from Marlette AND they have paid to Martlette the required invoiced amount. These separate s or artwork will only be delivered to the Client once full payment has been received by Martlette .
(d) Artwork supplied by Martlette MAY NOT be used for any other purpose than the original application, i.e. artwork for press adverts, packaging, brochures, etc, may not be used for any other project, in part or in full, at any other time.
(e) Martlette claims no copyright in material submitted for the purpose of fulfilling the Client’s instruction.
(f) The Client warrants that the Client owns or controls all rights, and has obtained all Copyright, or has permissions, consents and waivers that as are now and hereafter required for all using, editing, copying, processing, duplication and manipulation of all information and material given to Martlette for the purposes of the work for the Client.
(g) In the event that the Client has not obtained all the required permissions, consents and/or waivers the Client agrees to indemnify, protect, defend and hold harmless Martlette from any claims, demands, legal actions, damage or penalty related to any information and material given to and used by Martlette in the creation of the Client’s work.
(h) The Client also warrants that no copyright or moral rights will be infringed by Martlette carrying out the requested work.
12. Liability
(a) Nothing in these Terms limit, exclude or modify or purports to limit, exclude or modify the statutory consumer guarantees as provided under the Competition and Consumer Act 2010 (Cth), as well as any other implied warranties which are precluded from exclusion or modification and this Clause is only intended to limit Martlette ’s liability where the law allows.
(b) Where permitted by law: (i) The liability of Martlette will be limited to the cost of the work. (ii) Martlette (including its related entities, respective officers, employees and agents) excludes all liability (including negligence), for any personal injury or any loss or damage (including loss of opportunity); whether direct, indirect, special or consequential, arising in any way out of the work and without limiting the generality of the foregoing. (iii) Martlette is not subject to, and the Client releases Martlette from, any liability (including but not limited to consequential loss or damage) because of, inter alia: any delay in delivery or fault or defect in the work; negligent act or omission; improper use of work, operation, storage or handling of work by the Client other than accordance with any written instructions supplied with the work. (iv) Martlette will not be liable for any loss or damage to the Client or any other party including loss of income. (v) Martlette will not be liable for the cost of re-editing the work.
13. Promotion of Martlette
The Client acknowledges that Martlette has the right to use the work for promotional purposes, including but not limited to the Martlette website, YouTube account and Facebook page.
14. Dispute Resolution
(a) The Client must notify Martlette of any disputes by email prior to the due date of payment for the work. The Client will not withhold payment of outstanding that do not relate to the dispute.
(b) In the event of a dispute arising out of these Terms or any contract, both parties must exercise reasonable endeavours to resolve the dispute including by way of mediation where appropriate.
15. Breach or Default Event
(a) If the Client is in breach of any of these Terms, the Client agrees that it will be responsible for all of the expenses incurred by Martlette in enforcing its rights including recovering monies owed.
(b) If a default event occurs Martlette may withhold further provision of products and/or services, and all amounts outstanding to Martlette by the Client, even if not otherwise due for payment, will become immediately payable.
(c) A default event will occur if: (i) If in the sole opinion of Martlette , there is a material risk that the Client is, or will be, unable to pay amounts owing to Martlette or perform any other obligation under these Terms and Martlette gives notice in writing to the Client of its opinion (ii) the Client defaults in paying any sums due to Martlette ; (iii) the Client is an individual and becomes insolvent, bankrupt, commits any act of bankruptcy, compounds with or enters into any compromise or arrangement with its creditors; (iv) the Client is a company and has a provisional liquidator, liquidator, receiver, receiver and manager or official manager, trustee for creditors or in bankruptcy, voluntary administrator or analogous person appointed to it or its property; (v) the Client has judgment entered against it in any court and Martlette gives notice in writing to the Client that, in its sole discretion, Martlette considers it to be a default event; or (vi) a secured creditor seizes or takes possession of any collateral in the possession of the Client and Martlette gives notice in writing to the Client that, in its sole discretion, Martlette considers it to be a default event.
16. Right to Set-Off
(a) Martlette may appropriate any payment received from the Client towards the satisfaction of any part of any debt owing or which may become owing by the Client or its related entity following an event of default event.
(b) Martlette may deduct from amounts otherwise payable to the Client any amount which is owed or may become owing by the Client under any other supply or distribution agreement entered into with the Client, or any claim which Martlette reasonably considers it has against the Client.
(c) Where the Client is a trustee, the Client acknowledges that the right of set-off contemplated by this clause binds it as trustee personally.
(d) The Client expressly warrants that it has the authority to bind its related entities for the purposes of this set-off clause and agrees that this clause may be relied upon as acquiescence of such authority in making any claim of set-off against a party and/or any member of a group company.
17. Force Majeure
Martlette shall not be in default or be liable for failure to observe or perform in accordance with these Terms for any reason or cause which is outside of the reasonable control of Martlette , including without limitation, war, insurrection, riot, civil commotion, strikes, lockouts, industrial disputes, acts of god, act of governments, flood, storm, tempest, power shortages or power failure, or an inability to obtain sufficient labour, raw materials, fuel or utilities.
18. Amendment
These terms may be changed, amended or altered in part, or in full, without warning by Martlette . It is the responsibility of the Client, and his/her staff, to read and understand these Terms.
19. Miscellaneous
(a) The Client must not assign any rights or benefits under these Terms unless it has obtained the prior written consent of Martlette , with such consent at the absolute discretion of Martlette .
(b) All communications from the Client to Martlette must be made in writing, including correspondence by email.
(c) Martlette is entitled to rely on orders made by any employee, agent or contractor of the Client. Such orders shall be deemed to have been made with the authority of the Client and will be binding.
(d) Martlette reserves the right to correct any errors or omissions of any kind in its offers, quotations, order confirmations or invoices, and the correction will be binding on Martlette and the Client.
(e) These Terms are governed by the laws of Victoria, Australia and each party irrevocably submits to the non-exclusive jurisdiction of the courts of Victoria.
(f) If any of these Terms are determined invalid, unlawful or unenforceable in whole or in part, such term shall be severed and the remaining terms shall continue to operate to the fullest extent permitted by law.
(g) These Terms and the quote and any alterations made in writing by Martlette constitute the entire agreement between the parties in relation to the supply of works, and supersedes all previous agreements or understandings between the parties including any inconsistent terms in any order.
Website disclaimer
All information contained in this website is intended for general information purposes only. The information is provided by Martlette. We try to keep the information up-to-date and ensure that it is correct, however, we make no warranties of any kind concerning the accuracy, completeness, suitability, reliability, or availability of the information contained in this website, or any products, services, links, or graphics that may be found on this website. Use this information at your own risk. Martlette will not be held liable for any loss or damage, or loss of data from your use of this website, or in connection with this website. This includes indirect or consequential loss or damage. Martlette has no control over websites that are linked to on this website. Those third party websites are under the control of their owners, and Martlette will not be held liable for your use of those websites. By linking to these sites, we are not endorsing or recommending any information or views expressed in the content on those sites.